People v. Gibbs CA2/2 ( 2023 )

Filed 5/9/23 P. v. Gibbs CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B322585
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA024954)
v.
CLARENCE GIBBS,
Defendant and Appellant.
THE COURT:
Defendant and appellant Clarence Gibbs appeals from the
denial of his petition for resentencing under Penal Code section
1172.6 (former section 1170.95),1 which allows defendants
convicted of felony murder under superannuated legal standards
1 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
For simplicity, we refer to the section by its new numbering.
All further statutory references are to the Penal Code
unless otherwise indicated.
to seek resentencing relief. Defendant’s appointed counsel filed a
no merit brief, and, pursuant to the procedures outlined by our
Supreme Court in People v. Delgadillo (2022) 14 Cal.5th 216, 232
(Delgadillo), we reviewed the arguments defendant raised in his
supplemental letter brief. Finding none of these arguments
persuasive, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Conviction and Sentencing
In 2003, a jury convicted defendant of attempted first
degree murder (§§ 187, subd. (a); 664). The jury found true,
among other allegations, that defendant personally and
intentionally discharged a firearm that proximately caused bodily
injury (§ 12022.53, subds. (b), (c), (d)). The trial court sentenced
defendant to life with the possibility of parole for the attempted
murder, plus 25 years for the firearm allegation. On direct
appeal, we affirmed the conviction. (See People v. Gibbs (Sept. 9,
2004, B170437) [nonpub. opn.].)
II. Section 1172.6 Petition
On September 30, 2018, the Governor signed Senate Bill
No. 1437 (2017–2018 Reg. Sess.) (Sen. Bill 1437) in order to
“amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
Sen. Bill 1437 also added section 1172.6, subdivision (a),
creating a procedure whereby a person convicted of, as relevant
here, “attempted murder under the natural and probable
consequences doctrine,” but who could not now be convicted, can
2
petition to have his conviction vacated and to be resentenced.
(Stats. 2018, ch. 1015, § 4.)
On February 7, 2022, defendant filed a petition for
resentencing under section 1172.6. He also requested
appointment of counsel.2
On July 13, 2022, the trial court denied defendant’s
resentencing petition, ruling that he had not established a prima
facie case for relief. The court explained that the jury had not
been instructed on any theory of vicarious liability, including the
natural and probable consequences doctrine. Accordingly, in
finding defendant guilty of attempted first degree murder, the
jury necessarily found that defendant “was the actual
[attempted] killer” and that he “ha[d] [formed] the intent to kill.”
This appeal timely followed. Defendant’s appointed counsel
filed a brief raising no issues and asking this court to exercise its
discretion to independently review the record for error.
(Delgadillo, supra, 14 Cal.5th at pp. 231–232.)
On February 2, 2023, we sent a notice to defendant inviting
him to “submit a supplemental brief or letter stating any grounds
for an appeal, or contentions, or arguments that [defendant]
wishes this court to consider,” and advising that “[i]f no
supplemental brief or letter is timely filed the court may dismiss
the appeal as abandoned.” On March 20, 2023, defendant filed a
letter brief signed and dated on March 2, 2023.
DISCUSSION
We decline counsel’s request to exercise our discretion to
undertake an independent review of the record. Instead, per
2 While the record does not contain an order appointing
counsel, it does show that defendant was represented by
appointed counsel in all future proceedings.
3
Delgadillo, we limit our review to any arguments raised by
defendant. (Delgadillo, supra, 14 Cal.5th at p. 232 [“If the
defendant . . . files a supplemental brief or letter, the Court of
Appeal is required to evaluate the specific arguments presented
in that brief and to issue a written opinion. . . . If the defendant
does not file a supplemental brief or letter, the Court of Appeal
may dismiss the appeal as abandoned”].)
Although defendant’s letter brief was not filed with this
court until March 20, 2023, it is dated March 2, 2023. We will
thus assume that his brief is timely.
Defendant presents us with four arguments. First, he
restates the grounds for his section 1172.6 petition and asks us to
render a new and independent judgment on its merits.3 But, as
an appellate court, “[o]ur job on review is different from the trial
judge’s job in deciding the petition. While the trial judge must
review all the relevant evidence, evaluate and resolve
contradictions, and make determinations as to credibility, all
under the reasonable doubt standard, our job is to determine
whether there is any substantial evidence, contradicted or
uncontradicted, to support a rational fact finder’s findings beyond
a reasonable doubt.” (People v. Clements (2022) 75 Cal.App.5th
276, 298.)
Second, defendant argues that the trial court should not
have denied his petition on the grounds that the jury was not
instructed on the natural or probable consequences doctrine,
because section 1172.6 allows relief if the prosecution could have
proceeded on other theories of vicarious liability. This argument
3 Defendant also asks that we appoint him with counsel. We
note that he has been appointed counsel both before the trial
court and on appeal.
4
misreads section 1172.6, which only affords resentencing relief to
defendants whose convictions were obtained under theories of
vicarious liability invalidated by Sen. Bill 1437 unless
accompanied by findings of personal intent—namely, the natural
and probable consequences doctrine and the felony-murder
doctrine. (§ 1172.6, subd. (a).) In defendant’s case, the trial court
found that the jury had not been instructed on any now-
invalidated doctrine, and thus must have found that defendant
was the “actual [attempted] killer” and that he “ha[d] the intent
to kill.” On this record, defendant still could be convicted of
attempted murder notwithstanding the legislative amendments
made by Sen. Bill 1437. Accordingly, the trial court properly
determined that defendant is ineligible for resentencing relief.
(§ 1172.6, subd. (a)(3) [to establish a prima facie case for
resentencing, a defendant must show that he “could not presently
be convicted of . . . attempted murder because of changes to
Section 188 or 189 made effective January 1, 2019”].)
Third, defendant contends that the trial court should have
dismissed the firearm sentencing enhancement pursuant to
section 1385, subdivision (c). We disagree. Unlike section
1172.6, section 1385 does not establish a mechanism to reopen
sentencing proceedings. Instead, it merely provides the trial
court with a list of considerations to apply whenever it sentences
a defendant. (§ 1385, subd. (c).) Because the trial court properly
ruled that defendant was not entitled to resentencing under
section 1172.6, it had no occasion to apply the provisions of
section 1385.
Lastly, defendant argues that he is entitled to the
mandatory presumption favoring recall of his sentence and
5
resentencing under section 1172.1 (former section 1170.03). 4
Again, we disagree. Because more than 120 days have passed
since defendant’s sentence originally issued, the presumption in
section 1172.1 can only be triggered by the recommendation of
the California Department of Corrections and Rehabilitation
(CDCR) or the Board of Parole Hearings (the Board). (§ 1172.1,
subd. (a)(1).) In defendant’s case, neither CDCR nor the Board
has recommended that his sentence be recalled for resentencing.
Therefore, the mandatory presumption in favor of resentencing
does not apply. If either entity issues such a recommendation in
the future, defendant will be entitled to the benefit of section
1172.1 at that time.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.
4 Effective June 30, 2022, section 1170.03 was renumbered
section 1172.1, with no change in text. (Stats. 2022, ch. 58, § 9.)
For simplicity, we refer to the section by its new numbering.
6